With the rapid advancements in artificial intelligence that have taken place over the past few years, people have access to tools that allow them to generate visual media with stunning realism. One of the most controversial uses of this technology is the creation of sexually explicit images of child subjects.
In response, Texas passed a law in 2023 designed to prevent harm to children caused by the use of their images or likenesses in the creation of AI-generated child pornography.
What Does Proposed Texas Law Say?
Texas House Bill 2700, passed in June 2023, amends Texas’s child pornography laws to define “prohibited visual material” as a depiction of a minor that is:
- Recognizable as a real person by their face, likeness, or other distinguishing physical features, and
- Whose image was used in creating, adapting, or modifying visual materials, including computer-generated visual materials, through the use of generative AI or other computer software.
The law prohibits AI-created or photo-edited child pornography that depicts a real child, recognizing that even wholly computer-generated child pornography depicting a real child can exploit and harm that child even though the child did not actually engage in any recorded sexual act.
The bill further clarifies that the term “child” under the statute refers to a person under 18, covering any AI-generated sexually explicit material using the likeness of a minor regardless of whether that material depicts the child as 18 or older. Thus, sexually explicit materials depicting a person 18 or older, even if staged or altered to make the person look younger than 18, do not run afoul of Texas’s amended child pornography statutes.
What Is the Federal Law Regarding AI Child Pornography?
According to the Federal Bureau of Investigation, sexually explicit visual material involving children created through content manipulation technology such as generative artificial intelligence violates federal criminal laws prohibiting the creation, distribution, or possession of child sexual abuse material. The FBI noted that several individuals were convicted in federal court under child pornography laws in 2023 for creating or possessing child sexual abuse material made using artificial intelligence or photo editing software to alter images of actual clothed minors or to superimpose the faces of children onto nude bodies or bodies engaged in sexual acts.
Constitutional Challenges
It’s important to note that the new Texas law applies to pornographic images or productions that feature real children, even if they have been altered to involve sexual acts that did not happen. There is no current law governing the creation of images or productions that are made to look like children but are not really children. The last time that such a law was contemplated, the Supreme Court of the United States struck it down as a violation of the First Amendment.
In that case, a law sought to ban pornographic material that “appeared to be” or “conveyed the impression of” child pornography. The images in question were not of real children. They were older actors made to appear younger or images that used computer-imaging technology. An adult entertainment trade association challenged the law, stating that its wording would prohibit works that did not feature child pornography and had true artistic value. The Court agreed with the challenger to the law and found that the State did not have an interest in the matter because no real children were involved in the production of virtual child pornography.
With today’s advancements in AI and deepfake technology, AI can be used to create fake images and productions. Determining which content was made with real children and which is fake can be difficult. New state and federal laws are being passed to address these concerns, but it may be possible to challenge them on First Amendment or other viable legal grounds.
Contact Broden & Mickelsen, LLP If You Are Facing Child Pornography Charges
If you’re facing child pornography charges involving AI-generated images, you need experienced legal counsel to protect your rights, reputation, and freedom. You need Broden & Mickelsen, LLP. Our legal team includes board-certified specialists in criminal law and criminal appellate law who have over six decades of combined experience defending clients at the trial and appellate levels in state and federal courts in Texas. Contact us today for a confidential consultation with a child sexual abuse defense attorney to discuss your options for resolving your criminal case.
